January 6, 2010

The appellate judges rejected the claim of Ghaleb Nassar Bihani, a Yemeni native who served as a cook for a Taliban brigade in the fall of 2001, that he deserved to go free because the U.S. war against the Taliban ended when the Islamist forces surrendered in 2002.

Judge Janice Rogers Brown said nothing in the law required the release of military prisoners just because the fighting ended in one sector. The law permits "what common sense tells us must be true: release is only required when the fighting stops," she wrote. Otherwise, "each successful campaign of a long war . . . would trigger an obligation to release Taliban fighters captured in earlier clashes" who could then return to battle.

The judges also rejected the notion that these military prisoners were entitled to the full protections of the criminal law....

"In a detainee case, the judge acts as a neutral decision maker charged with seizing the actual truth of a simple, binary question: Is detention lawful?" she wrote.

The district judge had found that Bihani had fought with the Taliban, the court held, and that is enough to give the U.S. the power to hold him until the long war is over.

78 comments:

The goal of the US government should be to protect US citizens, not to grant rights to the foreigners who attack the US, not to show the world what good people we are and not get criminal convictions of people who attack US citizens as an act of war.

A good decision as far as Bihani goes: Bihani had joined up with the Taliban, received a weapon and ammunition as well as training in its use, and was captured by US forces in Afghanistan. He appears eligible for prisoner of war status, because he belonged to a militia belonging to the organized Taliban resistance movement. Thus he can be detained till the duration of hostilities. Here the end of hostilities will be marked by either the surrender of the Taliban or its takeover of Afghanistan.

Here are the facts of Bihani's Taliban service:http://projects.nytimes.com/guantanamo/detainees/128-ghaleb-nassar-al-bihani

Does this mean we can waterboard him until the war is over (which will be around 2200)?

traditionalguy said...

It's nice to see that we are at War after all in the real world where the Federal Court's perceptions are not smoke and mirrored over by the Enchanter-in-Chief who now occupys our White House.

It's a little like all those lawsuits that tried to have the peacetime draft overturned. The appellate court justices may live in LaLa Land most of the time, but they know, if anything bad happens, their necks are on the line. Federal courts are in all those big cities likely to be hit by the followers of the Religion of Peace.

But is it not self-evident that our Creator has endowed all men -- even foreigners -- with certain unalienable Rights; that among these are Life, Liberty and the pursuit of Happiness?

As an atheist, it's not at all self evident that the 'Creator' endowed me with anything. That being said, it seems that for some of these foreigners, the pursuit of Happiness is killing as many Americans as possible which of course gets in the way of my Life, Liberty and pursuit of Happiness.

Personally I have no problem treating these individuals much in the same way the Royal Navy eliminated piracy on the high seas.

A nice counterpart to the post below about the terrorist released to Libya.

Common sense mandates that we hold such people until we have prevailed in the jihad being waged against the west. Yes, that will be a long time, probably generations. But we didn't start this war; they did. Our choice is to fight or submit (which conveniently enough is what Islam means).

But is it not self-evident that our Creator has endowed all men -- even foreigners -- with certain unalienable Rights; that among these are Life, Liberty and the pursuit of Happiness?

If this Creator endowed us with rights, why should the government have any business granting them? And does anyone honestly think that the fact that there is, under natural law theories, an unalienable Right to Liberty mean that we can't lock people up?

Arturius -- If you insist I'm willing to concede that atheists have no rights.

Not a surprise since many religious fundamentalists tend think in a similar manner.

But to my point, if the 'Creator' granted those things to us it should not have required a written proclomation and war to secure them correct?

You're free to believe what you wish of course, however our 'rights' are endowed by the existing set of laws and form of government that is currently in power. I'm quite confident that those poor souls living in countries like North Korea or Burma are wondering when their endowment is coming due from the Creator.

Agree 100%. Your rights were never doled out to you by an all-powerful government -- that's statist talk.

So if I understand you, the government of the USA didn't endow my unalienable rights and the Creator did where does that leave the poor saps in North Korea or Burma? Or does the Creator not see them as worthy of those unalienable rights?

"But is it not self-evident that our Creator has endowed all men -- even foreigners -- with certain unalienable Rights; that among these are Life, Liberty and the pursuit of Happiness? Or did a different God create foreigners?"

Did a different God create the men that your buddy, Barack Obama, has been murdering with Hellfire missiles fired from drone aircraft over Pakistan?

When did those people get their fair trial?

When did those people get their due process?

Do those men have inalienable rights?

Your Democrat President is a murderer. He has been ordering assassinations.

So, are you promoting that since you believe your God gave the unalienable right of liberty to all men, murderers should not be either executed or jailed?

Tangentially to your question, life, liberty and pursuit of happiness are indeed inalienable rights, and not granted by the State -- but all of us have entered into a social contract with the State at the moment of our birth in this country or naturalisation.

Laws are not restrictions on our civil liberties, but rather reflections on what we citizens consider important to maintaining order. Anyone who comes to this country needs to abide by its laws, knowing that the penalty for murder is possibly a death sentence.

What makes modern Western civilisations so different, is that we feel constrained by our lofty ideals to extend these hard-won liberties to even those who would kill us, even to those who have not put one moment's worth of effort into making this country what it is, even to those who have zero expectations of rights in their own countries.

We may die as a nation due to our idealism, but at least we died nobly.

So if I understand you, the government of the USA didn't endow my unalienable rights and the Creator did where does that leave the poor saps in North Korea or Burma? Or does the Creator not see them as worthy of those unalienable rights?

Arturius, you are confusing the existence of moral rights with whether or not creatures of power, like governments and laws, happen to recognise them and make special provision for their protection. Power flows from the barrel of a gun, not from moral theory, so there's no particular reason to expect a tool of power, like a legal system, to reflect rights. That ours generally does is the happy result of the foresight of the framers, and the (mostly) good faith efforts of our judges and legislators. Others are not so fortunate.

I was trying to see if fls actually thought that US legal protection should be extended to foreign enemies captured during combat. But more to the point, if he thought that since (in his opinion) God granted these rights to all humans, God's decree (his interpretation of) overrides US law.

Power flows from the barrel of a gun, not from moral theory, so there's no particular reason to expect a tool of power, like a legal system, to reflect rights. That ours generally does is the happy result of the foresight of the framers, and the (mostly) good faith efforts of our judges and legislators. Others are not so fortunate.

Actually this is exactly my point. Former Law Student believes a Creator endowed me with the unalienable rights while I as an atheist do not.

I'm also not sure what 'moral rights' are. I'll assume you mean those unalienable rights that Former claims are life, liberty and pursuit of happiness. Granted they have been adopted in part or whole by others and flat out rejected by even more. I'm quite sure your (and even my) idea of 'moral rights' are in direct contradiction to someone living in Saudi Arabia. In other words, the concept of life, liberty and pursuit of happiness is a social contruct unique to our culture and political environment, although I will concede its not necessarily a permament feature.

Then I'm not sure you got rollingdivision's point. The goal of the US is to protect US citizens even if that means not granting the same legal US rights to them instead of extending those protections in order to look good to the world.

But is it not self-evident that our Creator has endowed all men -- even foreigners -- with certain unalienable Rights; that among these are Life, Liberty and the pursuit of Happiness?

Or did a different God create foreigners?

Cute.But even the US government recognizes that the unalienable rights don't travel with our citizens. We don't hold other countries responsible for treating our citizens the way we do, or granting the rights we have.

So as clever as this was, our government already recognizes limits to who has "unalienable" rights. People not under the protection of this government.

If, as our founding document asserts, all men are created equal, how do we justify differential treatment of foreigners? What in our history would suggest that is acceptable?

Well for starters you have to be a natural born American to be President so we even treat naturalized Americans different.

In terms of how we treat unlawful combatants, I can point to more instances in our history to the 'hang em high' course of justice than providing them a court appointed attorney and a jury of their peers as if they just robbed the local 7-11.

There is no need for confusion here. God gave us rights that we must defend from thieves and robbers called Kings and World Governance Institutions if we want them. A corollary of having those rights to be free is the need to defend them from those takers whether Armies, gangs or individual. This necessarily includes using the Death Penalty as a political penalty for indivduals, guilty beyond a reasonable doubt determined by a jury trial, of malice murder. The philosophers say that having a complete free will gives one a complete responsability for one's acts. Therefore, the day government offers to take away any of the responsability side of that equation is the day that your freedom dies in part.

Maybee...If out of uniform, then that is a spy subject to summary execution. Killers coming across our border are hostile enemy forces that are freely killed. Calling them "cooks" or "hairdressers" doesnot make them less of an enemy armed force. Calling them Moslem Jihadists doesnot make them less of an enemy force. The again an Attorney General and his Commander in Chief may ignore using those laws for our protection when political alliances between them and the foreign armed force over-ride our safety needs. That is what a Fifth Column means...an enemy armed force working secretly inside our society ready to emerge in the Day of battle against us from the inside. No wonder the Senate Democrats are running for the exits.

The main problem, as has been stated before here and elsewhere, is that terrorists can be part of large, organized, well-funded, and well-equipped NGO's (non-governmental organizations). This, I believe, removes them from any Convention adherence on our part.

Also, as it's been said before here and elsewhere, I've got zero problems with treating them like the Brits did pirates.

It is highly debatable whether the Taliban as a "resistance movement" (organized OR unorganized), would EVER qualify under the Geneva Accords insofar as it's actions do not take place under the aegis of any nation formally recognized by any Int law and/or also signatory to the Geneva accords. By this reading, it is impossible for a "militia" to exist by definition of the term alone. Thus Bihani is NOT eligible for POW status by ANY stretch of the imagination.

Power flows a lot more easily from moral rights and the consent of the governed than it does the barrel of a gun. The boys in the Forbidden City and the Kremlin are always looking over their shoulders; after all, the next time, the people in Tienamen (sp?) might prevail.

Also, it doesn't have to be self-evident to atheists that the Creator endowed everyone else with inalienable rights. People a lot smarter recognized it and established a system where even atheists who think they have a corner on intellect are protected.

traditionalguy said...

Maybee...If out of uniform, then that is a spy subject to summary execution. Killers coming across our border are hostile enemy forces that are freely killed. Calling them "cooks" or "hairdressers" doesnot make them less of an enemy armed force. Calling them Moslem Jihadists doesnot make them less of an enemy force. The again an Attorney General and his Commander in Chief may ignore using those laws for our protection when political alliances between them and the foreign armed force over-ride our safety needs. That is what a Fifth Column means...an enemy armed force working secretly inside our society ready to emerge in the Day of battle against us from the inside. No wonder the Senate Democrats are running for the exits.

The DrillSgt may have a clarification for you on that. I thought the same way you do, but usually there is some sort of process, if only a drumhead court, apparently.

Oligonicella...See my comment @ 1:24. The unalienably free citizens can defend themselves from thieves and murderers without violating God's grant of unalienable rights to mankind. In fact God is a warrior in such cases demanding justice for and from his people. That system works. A confused refusal to see and judge corporately the good and the evil in the actions of people only destroys all hope. When the laws are enforced, the people rejoice.

This, I believe, removes them from any Convention adherence on our part.Thank you, Professor Yoo.

It is highly debatable whether the Taliban as a "resistance movement" (organized OR unorganized), would EVER qualify under the Geneva Accords insofar as it's actions do not take place under the aegis of any nation

Article 3: Conflicts not of an international character. Covers insurgencies, civil wars, and the like.

Thanks. It's ridiculous to treat uninformed terrorists more fairly in the US than we'd treat uniformed military members.

It seems to me that we are inadvertently encouraging those who are willing to wage jihad to come here to do it.Don't attempt an attack on a country such as Saudi Arabia, because if you live you'll be subject to their cruel system.Don't attempt an attack on a US military target, because you will be subject to military law.Do attempt an attack in the US on US civilians, because you will be given a trial and all the rights involved therein.

Virgil - I believe that the Bush Administration made a determination that Taliban were organized, local resistance that would be accorded POW status at that time. Even though the Taliban were not signatories to Geneva and flouted many of conventions. (Meaning their status could change)

But that AQ was a force of unlawful enemy combatants.

Since 2001, though, while we whupped ass on the Taliban and drove them from power, they never ceded that they were defeated and in fact continued killing Americans and our Afghan allies every year since 2001.

Pretending we had a victory by early 2002, that the war is over and captured Taliban should be free to join their former combat squads is idiocy - but idiocy backed by powerful progressive Jews, the EuroLeft, organized Muslim groups. and other domestic liberals in the ACLU, the Courts, and Congress.

Hence the Bushies were forced to release many who later returned to combat, and who killed again.

The progressive Jews, Euroweenies, Jihadi rights groups, and liberals acknowledged this, but then claimed that the "abuse" of near-luxury Gitmo, catered meals 3X a day, and weight gains of 25-40 pounds -- caused such Islamoids to seeth with rage --- and if they then began killing our guys again --it was only because the lawyers and courts failed to free them from the evil Bushies soon enough.

We signed the Geneva Conventions, remember? The Senate ratified the 1949 conventions. Pacta sunt servanda. The Constitution states "... all treaties made ... under the authority of the United States shall be the supreme law of the land." Over a century ago, the Supreme Court held that "International Law is part of our law."

As an atheist, it's not at all self evident that the 'Creator' endowed me with anything.

That's unfortunate considering that the founding fathers used this premise as a means to develop said rights under the auspices of endowment by any creator your deny exists. That's your right as well, but you live under this system, no? If you do, then you either implicitly or knowingly accept that premise. To reject it on the face of atheistic adherence, then one could argue that atheism is not an excuse to ignore the foundational doctrine that this country was created from and operates under.

If, as our founding document asserts, all men are created equal, how do we justify differential treatment of foreigners? What in our history would suggest that is acceptable?

Personally, I don't think that all 'men' ARE created equal. That is just impossible. People are different and have different levels of skills, intelligence, physical atributes. Men and women are not created equal.

However, as Arturius stated, we are granted equal rights by our government. Meaning that we all have the same opportunities to succeed and to pursue happiness.

Success or happiness is not guaranteed. There is no way that the Government can guarantee equal outcomes (which is what the liberals want to do). The Government can guarantee equal opportunties by outlawing discrimination and also by not giving preferential treatment. They can also stop putting obstacles in the way of success and happiness and trying to pick and choose who can be successful and to what extent.

Opportunities may be presented to you which you ignore or squander. That isn't the government's fault or even God's fault (if you believe in God and in free will), it is your own fault.

As to the unequal treatment of foreigners, if they have committed crimes, and they are being treated equally with other criminals who have committed similar crimes, what is the problem.

In addition, the US Constitution applies to Citizens of the United States, not to the entire world.

Janet Rogers Brown was confirmed by the Senate in June of 2005 by a vote of 56-43. Only one Democrat, Nelson of Nebraska, voted in favor of confirmation. A black woman, she was pilloried as "extreme right wing" by numerous left wing organizations, including the NAACP. As best I can tell her performance as a Judge has not been particularly ideological or conservative. But the Senate vote is a reminder of what liberals do to African-Americans who dare to leave the Democratic political plantation.

So, if you follow the laws and customs of war, as Bihani did, then you can be detained as a POW without trial for the duration of the conflict. (Potentially a life sentence.)

If, however, you are a terrorist and commit war crimes or crimes against humanity, then you cannot be detained without a trial, and a military tribunal is not sufficient for this purpose -- the terrorist must be tried in a proper military hearing under the UCMJ or a civilian court, with the full rights afforded to US soldiers or US civilians. (At least according to the Supreme Court ruling in Hamdan v. Rumsfeld.)

The message here, strategically, is that it's far more desirable to conduct a terrorist war against the United States than it is to follow the Geneva Conventions and the laws and customs of war.

In other words, if you violate international law, you get a cookie. If you follow it, you go to your room.

Expect even more terrorism now that it has been legitimized and incentivized.

People are different and have different levels of skills, intelligence, physical atributes. Men and women are not created equal.

No one can deny that I do not have the looks of Heidi Klum, the body of Megan Fox, the height of Ines de la Fressange, the elegance of Audrey Hepburn. I also lack the brains of Marie Curie. But the thing I do have in common with ALL these women is that they are no different from me, instrinsically. I am just as good as they are, and no less worthy of respect and justice.

victoria - if you want to keep the delusion that you are as good as they are fine. If that helps you sleep better at night. But history shows the elite have always had the best of everything, including justice.

It seems odd that we're discussing the applicability of a phrase from the Declaration of Independence

The Declaration speaks to our national ethos -- what we are as a country, our guiding principles, etc. The Constitution limits the powers of our national government -- and, some eight decades after it was ratified, the powers of state governments.

"It seems to me that we are inadvertently encouraging those who are willing to wage jihad to come here to do it."

You are correct. This is precisely what we are doing now. Our complete dominance of the conventional battlefield the the ramifications of Hamdan v. Rumsfeld legitimize terrorism and create an incentive for those hostile to the United States to violate international law.

Not only that, as I said before in another comment thread, using civilian courts to try war criminals will pervert out justice system. The most glaring example of this is the upcoming trial of Khalid Sheikh Mohammed. The Obama/Holder Justice Department has already stated that even if he gets off, he will be detained for life.

That is a perversion of our justice system no matter how you slice it.

On top of that, there are going to be all sorts of insane jurisdictional and evidentiary problems that are going to crop up, and in a very real way we are going to have to lower and warp our standards.

What's more, civilian laws are going to be interpreted in various twisted ways to obtain convictions and these precedents will be applied to actual American citizens (as opposed to terrorists elevated to the status of honorary American citizens by their crimes against humanity).

Formerlawstudent wrote:We signed the Geneva Conventions, remember? The Senate ratified the 1949 conventions. Pacta sunt servanda. The Constitution states "... all treaties made ... under the authority of the United States shall be the supreme law of the land." Over a century ago, the Supreme Court held that "International Law is part of our law."

The Geneva Convention makes a distinction between lawful and unlawful combatants, but even the Geneva Convention allows for indefinite denention of combatants for the duration of hostilities. And these are LAWFUL combatants. So it sounds like you have a beef with the GEneva convention which appears to be at odds with our values.

The US government does not recognize the unalienable rights endowed by our Creator, or anyone's Creator. FLS would do better to read just the preamble of the US Constitution:

"We the people" That means US citizens, not people of the world.

"establish justice" US citizens establish that justice.

And we do so to secure the "Blessings of Liberty to ourselves and our posterity". It's clear, our Liberty, not the endowed Liberty of some Creator to all people of the world. But our Liberty of we the people who established the US. Bihani is not a member of "we the people", and neither is Mutallab.

However, while FLS waxes foolishly on how the US should provide US citizen's rights to a foreign combatant; he doesn't seem to realize how forfeiting these rights to foreigners have destroyed the rights, supposedly reserved in the US Bill of Rights, of US citizens. What do I mean? Look at how US handles security now for travel which mixes foreigners and civilians. Forget 2nd Amendment right to keep and bare arms; you don't have that right at US airports. 4th Amendment protection from search and seizure are waived because you chose to fly. Think you are being hassled and want to exercise your 1st Amendment rights to protest government intrusion or 5th Amendment right to refuse to incriminate yourself? Go ask Michael Yon what happens to you.

In this and another thread, I mentioned Hamdan v. Rumsfeld as the Supreme Court case that legitimized terrorism. I was going from memory and I screwed up. I was actually thinking of Boumediene v. Bush.